[Federal Register Volume 66, Number 29 (Monday, February 12, 2001)]
[Rules and Regulations]
[Pages 9766-9769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3381]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[MD107-3062; FRL-6922-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Maryland; New Source Review Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is approving a State Implementation Plan (SIP) revision 
submitted by the State of Maryland. This SIP revision amends the 
requirements for major new sources and major modifications to existing 
sources of volatile organic compounds (VOCs), and nitrogen oxides 
(NOX) to meet certain new source review (NSR) permitting 
requirements if they are proposing to locate or are located within the 
State of Maryland. These NSR requirements apply not only in those 
portions of Maryland designated as ozone nonattainment areas, but 
throughout the State of Maryland as the entire state is located within 
the Ozone Transport Region (OTR). EPA is fully approving Maryland's NSR 
program in the Maryland portion of the Metropolitan Washington, DC 
Ozone Nonattainment Area and throughout the State of Maryland with the 
exception of the Baltimore Ozone Nonattainment Area and the Maryland 
portion (Cecil County) of the Philadelphia-

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Wilmington-Trenton Ozone Nonattainment Area. In the Baltimore Ozone 
Nonattainment Area and in Cecil County, EPA is granting limited 
approval of Maryland's NSR regulations because they are more stringent 
than the currently approved NSR program and serve, therefore, to 
strengthen the SIP. The intended effect of this action is to grant 
approval of Maryland's NSR regulations.

EFFECTIVE DATE: This final rule is effective on March 14, 2001.

ADDRESSES: Copies of the documents relevant to this action are 
available for public inspection during normal business hours at the Air 
Protection Division, U.S. Environmental Protection Agency, Region III, 
1650 Arch Street, Philadelphia, Pennsylvania 19103; the Air and 
Radiation Docket and Information Center, U.S. Environmental Protection 
Agency, 401 M Street, SW., Washington, DC 20460; and the Maryland 
Department of the Environment, 2500 Broening Highway, Baltimore, 
Maryland, 21224.

FOR FURTHER INFORMATION CONTACT: Perry R. Pandya, Mailcode 3AP11, U.S. 
Environmental Protection Agency, Region III, 1650 Arch Street, 
Philadelphia, Pennsylvania 19103, (215) 814-2167 or by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The State of Maryland submitted a formal SIP revision to EPA on 
June 8, 1993. That revision consisted of its NSR regulations. On 
September 25, 2000, the State of Maryland submitted a revised version 
of its NSR regulations as a SIP revision. On October 19, 2000 (65 FR 
62675), EPA proposed limited approval of the State of Maryland's NSR 
regulations submitted on June 8, 1993, as amended on September 25, 
2000. In its October 19, 2000 (65 FR 62675) notice of proposed 
rulemaking, EPA also withdrew its earlier May 25, 1994 (59 FR 26994) 
proposal to grant limited approval/limited disapproval to Maryland's 
NSR regulations.
    The comment period for EPA's October 19, 2000 proposal was 
originally scheduled to close on November 9, 2000. On November 9, 2000 
(65 FR 67319), EPA published a notice announcing that the comment 
period had been extended to November 20, 2000. A detailed description 
of Maryland's NSR regulations and EPA's rationale for approving them 
were provided in EPA's October 19, 2000 proposed rulemaking notice (65 
FR 62675) and shall not be restated here. EPA received public comments 
from EarthJustice, an environmental group. A summary of the comments 
and EPA's responses are found in Section II, below.

II. Public Comments Received and EPA's Responses

    Comment: The commenter asserts that EPA does not have the authority 
under the Clean Air Act to grant limited approval to Maryland's NSR 
program. The commenter contends unless EPA finds that Maryland's NSR 
program meets all applicable requirements of the Clean Air Act, it must 
disapprove it, either partially or fully.
    Response: EPA disagrees with this comment. Although section 110(k) 
of the Clean Air Act may not expressly provide authority for limited 
approvals, section 301(a) of the Act does provide ``gap-filling'' 
authority in conjunction with the section 110(k)(3) approval authority 
to provide for limited approvals where EPA has determined that a 
revised State provision strengthens the federal enforceability of a 
given State SIP. EPA has determined that Maryland's revised 
nonattainment NSR rules strengthen the federal enforceability of the 
current Maryland SIP because under the revised regulations NSR is now 
applicable statewide in Maryland, rather than just in seven counties 
and Baltimore City. Under the revised regulations, NSR provisions now 
apply to major sources of NOX emissions, rather that just 
major sources of VOC emissions. Under the Clean Air Act as amended in 
1990 (the Act), the definition of a major source is determined by its 
size, location, the classification of that area and whether it is 
located in the ozone transport region (OTR), which is established by 
the Act. The entire State of Maryland is included in the OTR. 
Therefore, NSR is applicable statewide in Maryland. The Act defines a 
major source of NOX as one that emits or has the potential 
to emit 25 or more tons of NOX per year (TPY) in any ozone 
nonattainment area classified as severe (such as Cecil County, the 
Maryland portion of the Philadelphia-Wilmington-Trenton Ozone 
Nonattainment Area and the Baltimore Ozone Nonattainment Area), as one 
that emits 50 or more TPY located in any ozone nonattainment area 
classified as serious (such as the Maryland portion of the Metropolitan 
Washington, D.C. Ozone Nonattainment Area). For any area in the OTR 
classified as attainment or marginal nonattainment (that is, the rest 
of the State), sections 182 and 184 of the Act define a major 
stationary source of NOX as one that emits or has the 
potential to emit 100 or more TPY. Similarly, the Act defines a major 
source of VOC as one that emits or has the potential to emit 25 or more 
tons of VOC per year (TPY) in any ozone nonattainment area classified 
as severe (such as Cecil County, the Maryland portion of the 
Philadelphia-Wilmington-Trenton Ozone Nonattainment Area and the 
Metropolitan Baltimore Ozone Nonattainment Area), as 50 or more TPY 
located in any ozone nonattainment area classified as serious (such as 
the Maryland Portion of the Metropolitan Washington, D.C. Ozone 
Nonattainment Area). For any area in the OTR classified as attainment 
or marginal nonattainment (that is, the rest of the State), sections182 
and 184 of the Act define a major stationary source of VOC as one that 
emits or has the potential to emit 50 or more TPY. Maryland's revised 
NSR regulation defines a major source of VOC and a major source of 
NOX to which NSR applies in compliance with the Act. The 
currently approved SIP's NSR regulations not only pertain solely to 
major VOC sources located in designated ozone nonattainment areas, but 
define a major source of VOC as one with the potential to emit 100 TPY. 
EPA has, therefore, also determined that Maryland's revised 
nonattainment NSR rules strengthen the federal enforceability of the 
current Maryland SIP because under the revised regulations, major 
sources are defined at the Act's lower definitions for applicability of 
NSR. Prior to 1990, offsets for NSR permitting in ozone nonattainment 
area had to be secured at a 1:1 ratio of actual emissions reduced for 
allowable emissions increased. The Act increases the ratio of required 
offsets for purposes of satisfying NSR requirements according to an 
ozone nonattainment area's classification. In severe areas (such as the 
Baltimore Ozone Nonattainment Area and Cecil County) the offset ratio 
is 1.3:1, in serious areas (such as the Metropolitan Washington, D.C. 
Ozone Nonattainment Area) the ratio is 1.2:1 and in areas of the OTR 
classified as marginal or attainment (such as the remainder of the 
State of Maryland), the ratio is 1.15:1. EPA has, therefore, also 
determined that Maryland's revised nonattainment NSR rules strengthen 
the federal enforceability of the current Maryland SIP because under 
the revised regulations, the ratio of required offsets has been 
increased as mandated by the Act whereas under the current SIP, the 
required offset ratio is 1:1. For all the reasons provided above, EPA 
concludes that it has proper authority under the Act to grant a limited 
approval action to Maryland's revised NSR regulations.

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    Nonetheless, upon further consideration of the comment received and 
further evaluation of Maryland's NSR program, EPA has determined that 
it is appropriate to grant full approval of the State's NSR program as 
it applies in the Maryland portion of the Metropolitan Washington, D.C. 
Ozone Nonattainment Area and in all other portions of Maryland with the 
exception of the Baltimore and the Maryland portion (Cecil County) of 
the Philadelphia-Wilmington-Trenton Ozone Nonattainment Areas. EPA's 
sole reason for proposing limited approval rather than full approval of 
Maryland's regulations was that they do not contain certain 
restrictions on the use of emission reductions from the shutdown and 
curtailment of existing sources or units as NSR offsets. These 
restrictions apply in nonattainment areas without an approved 
attainment demonstration [see 40 CFR part 51.165(a)(ii)(C)]. On 
December 15, 2000, EPA signed a final rule approving the attainment 
demonstration for the Metropolitan Washington, D.C. Ozone Nonattainment 
Area, and those restrictions do not apply in that area. With the 
exception of the Baltimore Ozone Nonattainment Area, and the Maryland 
portion of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Area 
(where EPA on December 16, 1999 proposed approval of the attainment 
demonstration, 64 FR 70397 and 70412, respectively), the State of 
Maryland has satisfied all applicable requirements for attainment 
demonstrations.
    Therefore, EPA is fully approving Maryland's NSR program in the 
Maryland portion of the Metropolitan Washington, D.C. Ozone 
Nonattainment Area and throughout the State of Maryland with the 
exception of the Baltimore and the Maryland portion of the 
Philadelphia-Wilmington-Trenton Ozone Nonattainment Areas (Cecil 
County). In the Baltimore Ozone Nonattainment Area, and the Maryland 
portion of the Philadelphia-Wilmington-Trenton Ozone Nonattainment Area 
(Cecil County), EPA is granting limited approval of Maryland's NSR 
regulations because they are more stringent than the current NSR 
program and serve, therefore, to strengthen the SIP.

III. Final Action

    EPA is approving Maryland's NSR regulations originally submitted as 
a SIP revision on June 8, 1993 and subsequently amended on September 
25, 2000. EPA is granting full approval of these regulations as they 
apply in the Metropolitan Washington, D.C. Ozone Nonattainment Area and 
throughout the remainder of the State of Maryland with the exception of 
the Baltimore and the Maryland portion (Cecil County) of the 
Philadelphia-Wilmington-Trenton Ozone Nonattainment Areas. EPA is 
granting limited approval of Maryland's NSR regulations as they apply 
in Cecil County and in the Baltimore Ozone Nonattainment Area. As a 
result of EPA's approval action, EPA is incorporating the following 
State provisions into the Maryland SIP: COMAR 26.11.17, as amended 
through October 2, 2000; and revisions to COMAR 26.11.01.01, 26.11.02, 
and 26.11.06.06, all as amended effective April 26, 1993. Maryland's 
submittals strengthen the SIP and meet the NSR requirements of the 
Clean Air Act. Accordingly, this action revises 40 CFR Section 52.1070 
by adding paragraph (c)(148) to reflect EPA's approval action.

IV. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this rule also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This rule will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
State to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing 
this rule, EPA has taken the necessary steps to eliminate drafting 
errors and ambiguity, minimize potential litigation, and provide a 
clear legal standard for affected conduct. EPA has complied with 
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the 
takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by April 13, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it

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extend the time within which a petition for judicial review may be 
filed, and shall not postpone the effectiveness of such rule or action. 
This action approving Maryland's NSR regulations may not be challenged 
later in proceedings to enforce its requirements. (See section 
307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Hydrocarbons, 
Incorporation by reference, Ozone, Reporting and recordkeeping 
requirements.

    Dated: December 15, 2000.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

Subpart V--Maryland

    2. Section 52.1070 is amended by adding paragraph (c)(148) to read 
as follows:


Sec. 52.1070  Identification of plan.

* * * * *
    (c) * * *
    (148) Revisions to the Maryland State Implementation Plan submitted 
on June 8, 1993 and September 25, 2000 by the Maryland Department of 
the Environment.
    (i) Incorporation by Reference
    (A) Letter dated June 8, 1993 from the Maryland Department of the 
Environment transmitting revisions to COMAR 26.11.01, 26.11.02, and 
26.11.06, as well as a new COMAR 26.11.17.
    (B) The following provisions of COMAR 26.11.01.01 (General 
Administrative Provisions--Definitions), 26.11.02 (Permits, Approvals, 
and Registration), 26.11.06 (General Emission Standards, Prohibitions, 
and Restrictions), and 26.11.17 (Requirements for Major New Sources and 
Modifications), effective April 26, 1993:
    (1) Revised COMAR 26.11.01.01J (definition of ``Modification'') 
[currently cited as COMAR 26.11.01.01B(20)].
    (2) New COMAR 26.11.01.01M-1 definition of ``New Source Review 
Source'' (NSR Source) [currently cited as COMAR 26.11.01.01B(24)], 
replacing COMAR 26.11.01.01L (``New Source Impacting on a Non-
Attainment Area--NSINA'').
    (3) Revised COMAR 26.11.02.03A(1), .03B, .09A (introductory 
paragraph), 09A(5), .10C (introductory paragraph), .11A (introductory 
paragraph), .11A(3).
    (4) Revised COMAR 26.11.06.06E(1).
    (5) New COMAR 26.11.17.01A; .01B(1)(a), (b); .01B(2) through 
.01B(14); .01B(15)(a)[introductory paragraph only], (c), (d), 
(e)[except iii], (f); .01B(16) through (18); .02B through .02F; .03A; 
.03B(1), .03B(2), .03B(3)(a) through .03B(3)(d)[except introductory 
paragraph]; .03B(4); .03B(5); .03C; .03D; .05A; .05B(1); .05B(3). This 
rule replaces COMAR 26.11.06.11.
    (C) Letter dated September 25, 2000 from the Maryland Department of 
the Environment transmitting revisions to COMAR 26.11.17.
    (D) The following provisions of COMAR 26.11.17 (Requirements for 
Major New Sources and Modifications), effective October 2, 2000: 
.01B(1)(c); .01B(15)(a)(i), .01B(15)(a)(ii), .01B(15)(b), 
.01B(15)(e)(iii); .02A(1), .02A(2); .03B(3), .03B(5), .03B(6)[formerly 
.03B(5)], .04A(1), .04A(2), .04B, .04C(1), .04C(2); .05B(2).

[FR Doc. 01-3381 Filed 2-9-01; 8:45 am]
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